Perth Amboy City Zoning Code
ARTICLE IV
Planning Board and Zoning Board of Adjustment
§ 430-24 Conflicts of interest.
A.
No member of the Planning Board or Zoning Board of Adjustment shall act on any matter in which he has, either directly or indirectly, any personal or financial interest. Whenever any such member shall disqualify himself from acting on a particular matter, he shall not continue to sit with the Board on the hearing of such matter nor participate in any discussion or decision relating thereto. Each member shall comply with the City Ethics Ordinance.
B.
Each member of the Planning Board and/or Zoning Board of Adjustment shall familiarize himself/herself with the Local Government Ethics Law (P.L. 1991, c. 29) as approved on February 20, 1991, and effective May 21, 1991.[1] This Act concerns ethical conduct for officers and employees of local government. As defined at N.J.S.A. 40A:9-22.3g of this Act, a "local government officer" means any person, whether compensated or not, whether part-time or full-time:
(1)
Elected to any office of a local government agency;
(2)
Serving on a local government agency which has the authority to enact ordinances, approve development applications or grant zoning variances;
(3)
Who is a member of an independent municipal, county or regional authority; or
(4)
Who is a managerial executive or confidential employee of a local government agency, but shall not mean any employee of a school district or member of a school board.
[1]
Editor's Note: See N.J.S.A. 40A:9-22.1 et seq.
§ 430-25 Establishment of Planning Board.
A.
Establishment. There is hereby established, pursuant to N.J.S.A. 40:55D-23, in the City of Perth Amboy a Planning Board of nine (9) members consisting of the following four (4) classes:
(1)
Class I: The Mayor.
(2)
Class II: One (1) of the officials of the city, other than a member of the governing body, to be appointed by the Mayor, provided that if there is an Environmental Commission, the member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 40:56A-1 shall be deemed to be the Class II Planning Board member if there is both a member of the Zoning Board of Adjustment or Historic Preservation Commission and a member of the Board of Education among the Class IV members or alternate members.
(3)
Class III: A member of the governing body, to be appointed by it.
(4)
Class IV: Six (6) other citizens of the city, to be appointed by the Mayor. The members of Class IV shall hold no other municipal office, position or employment, except that one (1) member may be a member of the Zoning Board of Adjustment or Historic Preservation Commission and one (1) may be a member of the Board of Education. A member of the Environmental Commission who is also a member of the Planning Board as required by N.J.S.A. 40:56A-1 shall be a Class IV Planning Board member unless there is among the Class IV members of the Planning Board or alternate members both a member of the Zoning Board of Adjustment or a member of the Historic Commission and a member of the Board of Education, in which case the member of the Environmental Commission shall be deemed to be the Class II member of the Planning Board. For the purpose of this subsection, membership on a municipal board or commission whose function is advisory in nature and the establishment of which is discretionary and not required by statute shall not be considered the holding of municipal office.
B.
Terms of members.
(1)
The term of the member composing Class I shall correspond with his official tenure.
(2)
The term of the members composing Class II and Class III shall be for one (1) year or terminate at the completion of their respective terms of office, whichever comes first, except for a Class II member who is also a member of the Environmental Commission.
(3)
The term of a Class II or a Class IV member who is also a member of the Environmental Commission shall be for three (3) years or terminate at the completion of his term of office as a member of the Environmental Commission, whichever comes first.
(4)
The term of a Class IV member who is also a member of the Board of Adjustment or the Board of Education shall terminate whenever he is no longer a member of such other body or at the completion of his Class IV term, whichever comes first.
(5)
The terms of all Class IV members first appointed pursuant to this chapter shall be so determined that, to the greatest practicable extent, the expiration of such terms shall be evenly distributed after their appointment as determined by resolution of the governing body. All Class IV members shall be appointed for terms of four (4) years except as otherwise herein provided.
(6)
All terms shall run from January 1 of the year in which the appointment was made, except as otherwise specified herein.
(7)
No member of the Planning Board shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest.
C.
Alternate members. There shall be two (2) alternate members of the Planning Board who shall be appointed by the appointing authority and shall meet the qualifications of Class IV members of the Planning Board. Said alternates shall be designated at the time of their appointment as Alternate No. 1 and Alternate No. 2. The terms of the alternate members shall be for two (2) years, except that the terms of the alternate members shall be such that the term of not more than one (1) alternate member shall expire in any one (1) year. A vacancy occurring otherwise than by expiration of term shall be filled by the approving authority for the unexpired term only. Alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member of any class. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote.
D.
Removal from office. No member or alternate member shall be permitted to act on any matter on which he has either directly or indirectly any personal or financial interest. Any member or alternate member may, after public hearing if he requests one, be removed by the governing body for cause.
E.
Vacancies. If a vacancy of any class shall occur otherwise than by expiration of term, it shall be filled by appointment as above provided for the unexpired term.
F.
Organization of Board The Planning Board shall elect a Chairman and Vice Chairman from the members of Class IV, select a Secretary, who may be a member of the Planning Board or a municipal employee, and create and fill such other offices as established by chapter.
G.
Planning Board Attorney. There is hereby' created the position of Planning Board Attorney. The Planning Board shall annually appoint and fix the compensation of the Planning Board Attorney for all legal services, including but not limited to regular and special meetings of the Board, litigation and such other legal services as may be deemed necessary by the Board. The Board Attorney shall be an attorney other than the Municipal Attorney. The Board shall not, however, exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.
H.
Expert staff. The Planning Board may also employ or contract for the services of a Planning Consultant and his staff and other services as it may deem necessary. The Board shall not, however, exceed, exclusive of gifts or grants, the amount appropriated by the governing body for its use.
I.
Powers of the Planning Board. The Planning Board is authorized to adopt bylaws governing its procedural operation. It shall also have the following powers and duties:
(1)
To create and adopt, and from time to time amend, a Master Plan for the physical development of the municipality, including in its consideration areas outside its boundaries which in the Board's judgment bear essential relation to the planning of the city, in accordance with provisions of N.J.S.A. 40:55D-1 et seq.
(2)
To administer the provisions of this chapter in accordance with the provisions of said chapter and with N.J.S.A. 40:55D-1 et seq.
(3)
To participate in the preparation and review of programs or plans required by state or federal law or regulations.
(4)
To assemble data on a continuing basis as part of a continuing planning process.
(5)
To annually prepare a program of municipal capital improvements and projects projected over a term of six (6) years, and amendments thereto, and recommend the same to the governing body.
(6)
To consider and report to the governing body within thirty-five (35) days after referral as to any proposed development regulations submitted to it pursuant to the provisions of N.J.S.A. 40:55D-26b.
(7)
The Planning Board, when reviewing applications for approval of subdivision plans, site plans or conditional uses, shall have the power to grant, to the same extent and subject to the same restrictions as the Board of Adjustment, provided that no variance under N.J.S.A. 40:55D-70d is required:
(a)
Variances, pursuant to Section 57C of P.L. 1975, c. 291 (N.J.S.A. 40:55D-70c), from lot area, lot dimension, setback and yard requirements, etc.
(b)
Direction, pursuant to Section 25 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-34), for issuance of a permit for a building or structure in the bed of a mapped street or public drainageway, flood control basin or public area reserved pursuant to Section 23 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-32), on the Official Map, if it is satisfied that:
[1]
The parcel or parcels of land cannot yield a reasonable return to the owner unless a building permit is granted.
[2]
The building or structure will increase the cost of opening such street as little as practicable or will tend to cause a minimum of change to the Official Map. In directing the issuance of such permit, the Board shall impose reasonable requirements as a condition of granting the permit, so as to promote the health, morals, safety and general welfare of the public.
(c)
Direction, pursuant to Section 27 of P.L. 1975, c. 291(N.J.S.A. 40:55D-36), for the issuance of a permit for a building or structure not related to a street where it is satisfied that:
[1]
If the permit is not granted, practical difficulty or unnecessary hardship would result.
[2]
The circumstances of the case do not require the building or structure to be related to a street. The Board may direct the issuance of such a permit subject to conditions that will provide adequate access for fire-fighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety and that will protect any future street layout shown on the Official Map or on a general circulation plan element of the Municipal Master Plan.
(d)
Whenever relief is requested pursuant to this subsection, notice of a hearing on the application for development shall include references to the request for a variance or direction for issuance of a permit, as the case may be.
(8)
Advisory duties. The Planning Board shall perform such other advisory duties as are assigned to it by ordinances or resolution of the city for the aid and assistance of the city or other municipal agencies and officers.
(9)
Informal review. At the request of the developer, the Planning Board shall grant an informal review of a concept plan for a development for which the developer intends to prepare and submit an application for a development. The developer shall not be required to submit any fees for such informal review. The developer shall not be bound by any concept plan for which review is requested, and the Planning Board shall not be bound by any such review.
J.
Minor Subdivision Committee. The Chairman of the Planning Board shall establish a Minor Subdivision Committee to review applications for development of minor subdivisions. The Committee shall have the power to determine, on behalf of the Board, whether an application for development conforms to the definition of "minor subdivision" in this chapter. The Committee shall also have the power to approve those applications which so conform, whether unconditionally or conditioned on terms ensuring the provisions of improvements.
K.
Citizen's Advisory Committee. The Mayor may appoint one (1) or more persons as a Citizen's Advisory Committee to assist or collaborate with the Planning Board in its duties, but such person or persons shall serve at the pleasure of the Mayor.
L.
Environmental Commission Review. Whenever the Environmental Commission has prepared and submitted to the Planning Board an index of the natural resources of the municipality, the Planning Board shall make available to the Environmental Commission an informational copy of every application for development to the Planning Board. Failure of the Planning Board to make such an informational copy available to the Environmental Commission shall not invalidate any hearing or proceeding.
M.
Rules and regulations. The Planning Board shall adopt such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter. In the issuance of subpoenas, administration of oaths and taking of testimony, the provisions of the County and Municipal Investigations Law of 1953 (N.J.S.A. 2A-67A:1 et seq.) shall apply.
N.
Technical Advisory Committee.
(1)
There is hereby established a Technical Advisory Committee which shall review new applications for development or informal reviews referred to it by the Planning Board or the Zoning Board of Adjustment. The Committee shall consist of the City Engineer, the City Planner/Planning Consultant, the Fire Inspector, a representative of the Police Department designated by the Chief of Police, the Zoning Officer, the Chairman of Economic Development and Planning Committee, the City Administrator and such other subcode officials or other employees or officials designated by the governing body. The City Administrator shall chair the Technical Advisory Committee or, in his absence, such person designated as temporary Chairman.
(2)
The Technical Advisory Committee shall have the following duties and responsibilities:
(a)
To acquaint the applicant with the substantive and procedural requirements of the subdivision and site plan ordinance.
(b)
To provide for an exchange of information regarding the proposed development plan and applicable elements of the Master Plan, this chapter and other development requirements.
(c)
To advise the applicant of any public sources of information that may aid the application.
(d)
To otherwise identify policies and regulations that create opportunities or pose significant constraints for the proposed development.
(e)
To review any proposed concept plans and consider opportunities to increase development benefits and mitigate undesirable project consequences.
(f)
To provide input into the general design of the project.
(3)
The Committee shall advise the applicable Board of its findings and recommendations prior to the meeting at which the application is to be considered.
§ 430-26 Establishment of Zoning Board of Adjustment.
A.
Establishment; composition.
(1)
A Zoning Board of Adjustment is hereby established pursuant to N.J.S.A. 40:55D-69 et seq. consisting of seven (7) residents of the City of Perth Amboy, and who shall be appointed by the Council of the City of Perth Amboy to serve four-year terms. The full term of a regular member shall commence on the first day of July and terminate on the final day of June four (4) years thereafter.
[Amended 7-2-1996 by Ord. No. 846-96; Ord. No. 1026-2011 by Ord. No. 1613-2011]
(2)
No member of the Zoning Board of Adjustment may hold any elective office or position under the municipality.
(3)
A vacancy occurring otherwise than by expiration of term shall be filled for the unexpired term only.
(4)
No member of the Zoning Board of Adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest.
B.
Alternate members.
(1)
There shall be two (2) alternate members of the Board of Adjustment appointed by the Council of the City of Perth Amboy. The alternate members shall be designated at the time of appointment by the Council of the City of Perth Amboy as Alternate No. 1 and Alternate No. 2. The terms of the alternate members shall be for two (2) years. The full term of an alternate member shall commence on the first day of January and terminate on the final day of December two (2) years thereafter.
[Amended 7-2-1996 by Ord. No. 846-96; Ord. No. 10-26-2011 by Ord. No. 1613-2011]
(2)
The alternate members may participate in discussions of the proceedings but may not vote except in the absence or disqualification of a regular member. A vote shall not be delayed in order that a regular member may vote instead of an alternate member. In the event that a choice must be made as to which alternate member is to vote, Alternate No. 1 shall vote.
(3)
No alternate member of the Board of Adjustment shall be permitted to act on any matter in which he has, either directly or indirectly, any personal or financial interest.
C.
Removal from office. A member or alternate member may, after a public hearing if he requests one, be removed by the governing body for cause.
D.
Officers. The Board of Adjustment shall elect a Chairman and Vice Chairman from its members and shall also select a Secretary, who may be either a Board member or another municipal employee.
E.
Board of Adjustment Attorney. There is hereby created the position of Attorney to the Zoning Board of Adjustment, appointed by the Zoning Board of Adjustment. The Zoning Board of Adjustment shall annually appoint and fix the compensation of the Zoning Board of Adjustment Attorney for all legal services, including but not limited to regular and special meetings of the Board, litigation and such other legal services as may be deemed necessary by the Board. The Board Attorney shall be an attorney other than the Municipal Attorney or Planning Board Attorney. The Board shall not, however, exclusive of gifts or grants, exceed the amount appropriated by the governing body for its use.
F.
Expert staff. The Zoning Board of Adjustment may also employ or contract for a Planning Consultant and his staff and other expert services as it may deem necessary. The Board shall not authorize expenditures which exceed, exclusive of all gifts or grants, the amount appropriated by the governing body for its use.
G.
Rules and regulations. The Board shall adopt bylaws governing its procedural operation and such rules and regulations as may be necessary to carry into effect the provisions and purposes of this chapter. In the issuance of subpoenas, administration of oaths and taking of testimony, the provisions of the County and Municipal Investigations Law of 1953 (N.J.S.A. 2A:67A-1 et seq.) shall apply.
H.
Powers of the Zoning Board of Adjustment. The Board of Adjustment shall have such powers as are granted by law to:
(1)
Hear and decide appeals where it is alleged by the appellant that there is an error in any order, requirement, decision or refusal made by an administrative official or agency based on or made in the enforcement of this chapter.
(2)
Hear and decide requests for interpretation of the Zoning Map or this chapter or for decisions upon other special questions upon which such Board is authorized to pass by this chapter.
(3)
Variances.
(a)
Where, by reason of exceptional narrowness, shallowness or shape of a specific piece of property or by reason of exceptional topographic conditions or physical features uniquely affecting a specific piece of property or by reason of an extraordinary and exceptional situation uniquely affecting a specific piece of property or the structures lawfully existing thereon, the strict application of any regulation pursuant to Article III of this chapter would result in peculiar and exceptional practical difficulties to, or exceptional and undue hardship upon, the developer of such property, grant, upon an application or an appeal relating to such property, a variance from such strict application of such regulation so as to relieve such difficulties or hardship.
(b)
Where in an application or appeal relating to a specific piece of property the purposes of this chapter would be advanced by a deviation from this chapter, and the benefits of the deviation would substantially outweigh any detriment, grant a variance to allow departure from regulations pursuant to Article III of this chapter; provided, however, that no variance from those departures enumerated in Subsection H(4) of this section shall be granted under this subsection; and provided further that the proposed development does not require approval by the Planning Board of a subdivision, site plan or conditional use, in conjunction with which the Planning Board has power to review a request for a variance pursuant to Article IV, § 430-25I.
(4)
Grant of variance.
(a)
In particular cases and for special reasons, grant a variance to allow departure from regulations to permit:
[1]
Use or principal structure in a district restricted against such use or principal structure.
[2]
An expansion of a nonconforming use.
[3]
Deviation from a specification or standard pursuant to Section 54 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-67), pertaining solely to a conditional use.
[4]
An increase in the permitted floor area ratio as defined in Section 3.1 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-4).
[5]
An increase in the permitted density as defined in Section 3.1 of P.L. 1975, c. 291 (N.J.S.A. 40:55D-4), except as applied to the required lot area for a lot or lots for detached one- or two-dwelling-unit buildings, which lot or lots are either an isolated undersized lot or lots resulting from a minor subdivision. A variance under this subsection shall be granted only by affirmative vote of at least five (5) members.
(b)
No variance or other relief may be granted under the provisions of this section unless such variance or other relief can be granted without substantial detriment to the public good and will not substantially impair the intent and purpose of the zone plan and this chapter.
(c)
Any application under this section may be referred to any appropriate person or agency for its report, provided that such reference shall not extend the period of time within which the Zoning Board of Adjustment shall act.
I.
Additional powers. In addition, the Zoning Board of Adjustment shall have the power given by law to:
(1)
Direct issuance of a permit pursuant to N.J.S.A. 40:55D-34 for a building or structure in the bed of a mapped street or public drainageway, flood control basin or public area reserved on the Official Map, when it is satisfied that the parcel or parcels of land cannot yield a reasonable return to the owner unless a building permit is granted and the building or structure will increase the cost of opening such street as little as practicable or will tend to cause a minimum change of the Official Map. In directing the issuance of said permit, the Board shall impose reasonable requirements as a condition of granting the permit so as to promote the health, morals, safety and general welfare of the public, pursuant to N.J.S.A. 40:55D-76, Subsection a(1).
(2)
Direct issuance of a permit for a structure without access to a street where it is satisfied that if the permit is not granted practical difficulty or unnecessary hardship would result and the circumstances of the case do not require the building or structure to be related to a street. The Board may direct the issuance of such a permit subject to conditions that will provide adequate access for firefighting equipment, ambulances and other emergency vehicles necessary for the protection of health and safety and that will protect any future street layout shown on the Official Map or on a general circulation plan element of the Municipal Master Plan pursuant to N.J.S.A. 40:55D-76, Subsection a(2).
(3)
Grant, to the same extent and subject to the same restrictions as the Planning Board, subdivision or site plan approval pursuant to N.J.S.A. 40:55D-37 or conditional use approval pursuant to N.J.S.A. 40:55D-67 whenever the Board is reviewing an application for approval of a use variance pursuant to N.J.S.A. 40:55D-70d.
(4)
The developer may elect to submit a separate application requesting approval of the variance and a subsequent application for any required approval of a subdivision, site plan or conditional use. The separate approval of the variance shall be conditioned upon the grant of all required subsequent approvals by the Zoning Board of Adjustment, consistent with N.J.S.A. 40:55D-76.
J.
Appeals and application.
(1)
Appeals to the Board of Adjustment may be taken by any interested party affected by any decision of an administrative officer of the municipality based on or made in the enforcement of this chapter or Official Map. Such appeal shall be taken within twenty (20) days by filing a notice of appeal with the officer from whom the appeal is taken specifying the grounds of such appeal. The officer from whom the appeal is taken shall immediately transmit to the Board all the papers constituting the record upon which the action appealed was taken.
(2)
A developer may file an application for development with the Board of Adjustment for action under any of its powers without prior application to an administrative officer.
K.
Modification on appeal. The Board of Adjustment may reverse or affirm, wholly or in part, or may modify the action, order, requirement, decision, interpretation or determination appealed from and to that end have all the powers of the administrative officer from whom the appeal is taken.
L.
Stay of proceedings by appeal. An appeal to the Board of Adjustment shall stay all proceedings in furtherance of the action in respect to which the decision appealed from was made unless the officer from whose action the appeal is taken certifies to the Board of Adjustment, after the notice of appeal shall have been filed with him, that by reason of facts stated in the certificate a stay would, in his opinion, cause imminent peril to life or property. In such case, proceedings shall not be stayed other than by an order of the Superior Court upon notice to the officer from whom the appeal is taken and on due cause shown.
M.
Time for decision. The Board of Adjustment shall render its decision not later than one hundred twenty (120) days after the date an appeal is taken from the decision of an administrative officer or after the submission of a complete application for development to the Board pursuant to the provisions of N.J.S.A. 40:55D-72b, or within such further time as may be consented to by the applicant. Failure of the Board to render a decision within such period shall constitute a decision favorable to the applicant. In the event that the developer submits separate consecutive applications, pursuant to Subsection I(4), the aforesaid time period shall apply to the application for approval of the variance. The period for granting or denying any subsequent approval shall be as otherwise provided in this chapter. Failure of the Board to render a decision within the prescribed period shall constitute a decision favorable to the applicant.
N.
Expiration of variance. Any variance from the terms of this chapter hereafter granted by the Board of Adjustment permitting the erection or alteration of any structure or structures or permitting a specified use of any premises shall expire by limitation within one (1) year from the date of entry of the judgment or determination of the Board of Adjustment, unless the applicable construction permits have been obtained or the permitted use has actually been commenced by that date; except, however, that the running of the period of limitation herein provided shall be tolled from the date of filing an appeal from the decision of the Board of Adjustment to the governing body or to a court of competent jurisdiction until the termination in any manner of such appeal or proceeding.
O.
Environmental Commission Review. Whenever the Environmental Commission has prepared and submitted to the Zoning Board an index of the natural resources of the municipality, the Zoning Board shall make available to the Environmental Commission an informational copy of every application for development to the Zoning Board. Failure of the Zoning Board to make such an informational copy available to the Environmental Commission shall not invalidate any hearing or proceeding.
§ 430-27 Application procedure.
A.
All applications for development shall be filed with the administrative officer. At the time of filing of the application, the applicant shall also file the fee, a completed checklist as set forth in the schedule of forms attached to and made part of this chapter,[1] any request for waiver and any and all maps required by this chapter. The applicant shall obtain all necessary forms from the administrative officer.
[1]
Editor's Note: The checklist is on file in the Clerk's office.
B.
Upon receipt of an application for development, the administrative officer shall forward, within seventy-two (72) hours of receipt, one (1) copy of the submitted material to the approving board Secretary, as well as to the Board Engineer, the Board Planner, the Board Attorney, the Police Department Traffic Safety Bureau, the Fire Code Official and such other agencies of the municipality as may be designated by each approving board. It shall remain the responsibility of the applicant for applications and submission of all required documents to such other agencies as may have jurisdiction, including any/all county, regional, state or federal agencies with jurisdiction.
§ 430-28 Completeness review.
A.
The administrative officer, with input as required from Board professionals, if all submission requirements have been met, will deem the application complete and issue a certificate of completeness and forward the application to the municipal agency for hearing.
B.
An application for development shall be deemed to be properly submitted unless the administrative officer, with input as required from Board professionals, determines that it does not fulfill the criteria for a complete application pursuant to this chapter and the administrative officer has done the following.
C.
The application shall be deemed complete by operation of statute within forty-five (45) days of the date of its submission if the municipal reviewing board, or its authorized committee or designee, does not certify the application to be incomplete.
D.
The applicant may request relief from one (1) or more of the submission requirements. The request must be in writing stating the reason therefor. The reviewing board, or its authorized committee or designee, shall grant or deny the request within forty-five (45) days of the request.
E.
The administrative officer, with the consent of the appropriate Board Chairman and/or Secretary, shall assign a hearing date and notify the applicant of the same within five (5) days of the application being deemed complete. Notice to the applicant shall be in writing by regular mail. Upon receipt of a date for hearing, the applicant shall proceed to give proper notice of the hearing and comply with all other provisions of this chapter and the Municipal Land Use Law.[2] No hearing date shall be assigned until an application has been deemed complete.
[2]
Editor's Note: See N.J.S.A. 40:55D-1 et seq.
§ 430-29 Staff review of applications.
A.
The Board Engineer, the Board Planner, the Police Traffic Safety Bureau, the Fire Code Official and such other municipal agencies as may be designated by each approving board shall review applications for development for site plans, subdivisions and conditional uses and shall advise the Planning Board and/or the Board of Adjustment and the applicant of any technical deficiencies, required changes and/or recommended changes as perceived from their respective areas of expertise. Copies of revised plans and attachments which correct all deficiencies, incorporate all required changes and satisfactorily consider all recommended changes shall be submitted to the administrative officer for further review as required.
B.
Copies of the individual staff reviews shall be completed and submitted to the administrative officer seven (7) days in advance of the scheduled hearing date for each application.
C.
The administrative officer shall distribute one (1) copy of each staff report received on each application to each approving board member for their use and review at least seventy-two (72) hours in advance of the scheduled hearing date of each application.
§ 430-30 Meetings.
A.
Meetings of both the Planning Board and Zoning Board of Adjustment shall be scheduled no less than once a month, and any meeting so scheduled shall be held as scheduled unless canceled for lack of applications for development to process. Each Board shall fix the time and place for holding all meetings.
B.
Special meetings may be provided for at the call of the Chairman or on the request of any two (2) Board members, which shall be held on notice to its members and the public in accordance with all applicable legal requirements.
C.
No action shall be taken at any meeting without a quorum being present.
D.
All actions shall be taken by majority vote of quorum except as otherwise required by any provision of Chapter 291 of the laws of 1975 (see N.J.S.A. 40:55D-1 et seq.).
E.
All regular meetings and all special meetings shall be open to the public. Notice of all such meetings shall be given in accordance with the requirements of the Open Public Meetings Act, Chapter 231 of the Laws of 1975 (see N.J.S.A. 10:4-6 et seq.).
F.
An executive session for the purpose of discussing and studying any matters to come before either Board shall not be deemed a regular or special meeting in accordance with the provisions of N.J.S.A. 40:55D-9.
§ 430-31 Minutes.
Minutes of every regular or special meeting shall be kept and shall include the names of the persons appearing and addressing the Board and of the persons appearing by attorney, the action taken by the Board, the findings, if any, made by it and reasons therefor. The minutes shall thereafter be made available for public inspection during normal business hours at the office of the City Clerk. Any interested party shall have the right to compel production of the minutes for use as evidence in any legal proceeding concerning the subject matter of such minutes. Such interested party may be charged a reasonable fee as provided in Article VI for reproduction of the minutes for his use as provided for in the rules of the Board.
§ 430-32 Fees and documents.
Fees, forms and any other required documents for applications or for the rendering of any service by the Planning Board or Zoning Board of Adjustment or any member of their administrative staffs which are not otherwise provided for by ordinance may be provided for and adopted as part of the rules of the Board, and copies of said rules or of the separate fee and submission schedule shall be made available to the public.
§ 430-33 Hearings.
A.
Required hearings. The Planning Board and Zoning Board of Adjustment shall hold a hearing on each application for development.
B.
Filing of documents. Any maps and documents for which approval is sought at a hearing shall be on file and available for public inspection at least ten (10) days before the date of the hearing during normal business hours in the office of the administrative officer. The applicant may produce other documents, records or testimony at the hearing to substantiate, clarify or supplement the previously filed maps and documents.
C.
Rules. The Planning Board and Zoning Board of Adjustment may make rules governing the conduct of hearings before such bodies, which rules shall be consistent with the provisions of N.J.S.A. 40:55D-1 et seq. or of this chapter.
D.
Oaths. The officer presiding at the hearing or such person as he may designate shall have the power to administer oaths and issue subpoenas to compel the attendance of witnesses and the production of relevant evidence, including witnesses and documents presented by the parties, and the provisions of the County and Municipal Investigations Law, P.L. 1953, c. 38 (N.J.S.A. 2A:67A-1 et seq.), shall apply.
E.
Testimony. The testimony of all witnesses relating to an application for development shall be taken under oath or affirmation by the presiding officer, and the right of cross-examination shall be permitted to all interested parties through their attorneys, if represented, or directly, if not represented, subject to the discretion of the presiding officer and to reasonable limitations to time and number of witnesses.
F.
Evidence. Technical rules of evidence shall not be applicable to the hearing, but the Board may exclude irrelevant, immaterial or unduly repetitious evidence.
G.
Records. Each Board shall provide for the verbatim recording of the proceedings by either stenographer, mechanical or electronic means. The Board shall furnish a transcript or duplicate recording in lieu thereof on request to any interested party at his expense, subject to the requirements as set forth in Article VI.
H.
Requirements for a certified shorthand reporter. A certified shorthand reporter may be provided by an applicant at his expense for a major subdivision, major site plan or use variance application before a municipal agency. The applicant shall provide a certified copy of the transcript of the proceedings to the municipal agency at his expense. In the event that an applicant shall provide a certified shorthand reporter for any other type of application before a municipal agency, the applicant shall provide a copy of the transcript to the municipal agency if requested or, in the event of a court case, at his own expense.
I.
Voting eligibility. A member or alternate member of a municipal agency who was absent for one (1) or more of the meetings at which a hearing was held shall be eligible to vote on the matter upon which the hearing was conducted, notwithstanding his or her absence from one (1) or more of the meetings; provided, however, that such Board member or alternate member has available to him or her the transcripts or recordings of all of the hearings from which he or she was absent and certifies in writing to the municipal agency that he or she has read such transcript or listened to such recording.
§ 430-34 Notice requirements for hearings.
A.
Whenever a hearing is required on an application for development pursuant to N.J.S.A. 40:55D-1 et seq., the applicant shall give notice thereof as follows:
(1)
Public notice shall be given by publication in the official newspaper of the municipality at least ten (10) days prior to the date of the hearing.
(2)
Notice shall be given to the owners of all real property, as shown on the current tax duplicate or duplicates, located within two hundred (200) feet in all directions of the property which is the subject of such hearing and whether located within or without the municipality in which the applicant's land is located. Such notice shall be given by serving a copy thereof on the owner as shown on said current tax duplicate or his agent in charge of the property or by mailing a copy thereof as shown on said tax duplicate. A return receipt is not required. Notice to a partnership owner may be made by service upon any partner. Notice to a corporate owner may be made by service upon its President, a Vice President, secretary or other person authorized by appointment or by law to accept service on behalf of the corporation. Notice to a condominium association, horizontal property regime, community trust or homeowners' association, because of its ownership of common elements or area located within two hundred (200) feet of the property which is the subject of the hearing, may be made in the same manner as to a corporation without further notice to unit owners, co-owners or homeowners on account of such common elements or areas.
(3)
Notice of all hearings on applications for development involving property located within two hundred (200) feet of an adjoining municipality shall be given by personal service or certified mail to the Clerk of such municipality, which notice shall be in addition to the notice required to be given to owners of lands in such adjoining municipality which are located within two hundred (200) feet of the subject premises.
(4)
Notice shall be given by personal service or certified mail to the Middlesex County Planning Board of a hearing on an application for development of property adjacent to an existing county road or proposed road shown on the Official County Map or the Middlesex County Master Plan, adjoining other county land or situated within two hundred (200) feet of a municipal boundary.
(5)
Notice shall be given by personal service or certified mail to the New Jersey Commissioner of Transportation of a hearing on an application for development of property adjacent to a state highway.
(6)
Notice shall be given by personal service or certified mail to the State Planning Commission of a hearing on an application for development of property which exceeds one hundred and fifty (150) acres or five hundred (500) dwelling units. Such notice shall include a copy of any maps or documents required to be on file with the administrative officer pursuant to Section 6b of Chapter 291 of the Laws of 1975 (see N.J.S.A. 40:55D-10).
B.
All notices hereinabove specified in this section shall be given at least ten (10) days prior to the date fixed for hearing, and the applicant shall file an affidavit of proof of service with the approving board holding the hearing on the application for development.
C.
Any notice made by certified mail as hereinabove required shall be deemed to be complete upon mailing in accordance with the provisions of N.J.S.A. 40:55D-14.
D.
Form of notice. All notices required to be given pursuant to the terms of this chapter shall state the date, time and place of the hearing the nature of the matters to be considered; and identification of the property proposed for development by street address and/or by reference to lot and block numbers as shown on the current tax duplicate in the Municipal Tax Assessor's office; and the location and times at which any maps and documents for which approval is sought are available as required by law.
§ 430-35 List of property owners furnished.
Pursuant to the provisions of N.J.S.A. 40:55D-12c, the City Tax Assessor shall, within seven (7) days after receipt of a request therefor, make and certify a list from the current tax duplicate of names and addresses of owners to whom the applicant is required to give notice. A fee not to exceed twenty-five cents ($0.25) per name or ten dollars ($10), whichever is greater, shall be charged for such list.
§ 430-36 Decisions; appeals.
A.
Each decision on any application for development shall be set forth in writing as a resolution of the Board, which shall include findings of fact and legal conclusions based thereon and shall be memorialized by resolution adopted at a meeting held not later than forty-five (45) days after the date of the meeting at which the reviewing agency voted to grant or deny approval. Only members of the Board who voted for the action taken may vote on the memorializing resolution.
B.
Where the agency fails to adopt a resolution, any interested party may apply to the Superior Court in a summary manner for an order compelling the agency to reduce its findings and conclusions to writing within a stated time, and the cost of the application, including attorney's fees, shall be assessed against the city.
C.
The following shall apply to adoption of the resolution of memorialization:
(1)
The vote on a resolution shall be deemed to be a memorialization of the action of the municipal agency and not to be the action of the municipal agency.
(2)
The vote of a majority of those eligible members who are present at the meeting at which the resolution of memorialization is presented for adoption shall be sufficient to adopt the resolution of memorialization.
D.
Appeals to Superior Court. Any interested party may appeal to the Superior Court any final decision of the Planning Board/Board of Adjustment approving/denying an application for development pursuant to N.J.S.A. 40:55D-1 et seq. Such appeal shall be made within ten (10) days of the date of publication of such final decision in accordance with the provision of N.J.S.A. 40:55D-17.
E.
Time for decision. After the date an appeal is taken from the decision of an administrative officer or the submission of a complete application for development to the administrative officer, the approving authority shall render its decision within the maximum number of days as specified below or within such further time as may be consented to by the applicant. Where more than one (1) type of application is involved, the longer time period shall apply.
Type of Application | Time Period (days) |
|---|---|
Site plans, minor | 45 |
Preliminary approval | |
10 acres or less or 10 units or less | 45 |
More than 10 acres or 10 units | 95 |
Final approval | 45 |
Subdivisions, minor | 45 |
Preliminary approval | |
10 lots or less | 45 |
More than 10 lots | 95 |
Final approval | 45 |
Conditional use authorization | 95 |
Variance | 120 |
Appeal from the decision of a municipal officer | 120 |
Direction for issuance of a building permit | 120 |
§ 430-37 Conditional approval.
A.
In the event that a developer submits an application for development proposing a development that is barred or prevented, directly or indirectly, by legal action instituted by any state agency, political subdivision or other party to protect the public health and welfare or by a directive or order issued by any state agency, political subdivision or court of competent jurisdiction to protect the public health and welfare, the approving board shall process such application for development in accordance with the provisions of N.J.S.A. 40:55D-1 et seq. and this chapter, and if such application for development complies with the provision of this chapter, the approving board shall approve such application conditioned on removal of such legal barrier to development.
B.
In the event that development proposed by an application for development requires an approval of a governmental agency other than the approving board, the approving board shall, in appropriate instances, condition its approval upon the subsequent approval of such governmental agency, provided that the approving board shall make a decision on any application for development within the time period provided in this chapter and N.J.S.A. 40:55D-1 et seq. or within an extension of such period as has been agreed to by the applicant, unless the approving board is prevented or relieved from so acting by the operation of law.
C.
Whenever review or approval of the application by the County Planning Board is required by N.J.S.A. 40:27-6.3, in the case of subdivision, or N.J.S.A. 40:27-6.6, in the case of a site plan, the approving board shall condition any approval that it grants upon timely receipt of a favorable report on the application by the County Planning Board or approval by the County Planning Board by its failure to report thereon within the required time period.
D.
The approving board may impose such other conditions as it deems appropriate.
E.
In all cases, the approving board may include a condition of approval setting forth the time within which all conditions of approval must be satisfied by the applicant. Failure of the applicant to meet all conditions of approval within the time specified or within such extensions thereof as the approving board may, from time to time, grant upon request of the applicant shall render any approvals null and void.
§ 430-38 Tolling of running period of approval.
In the event that, during the period of approval hereafter granted to an application for development, the developer is barred or prevented, directly or indirection, from proceeding with the development otherwise permitted under such approval by a legal action instituted by any state agency, political subdivision or other party to protect the public health and welfare or by a directive or order issued by any state agency, political subdivision or court of competent jurisdiction to protect the public health or welfare and the developer is otherwise ready, willing and able to proceed with said development, the running of the period of approval shall be suspended for the period of time said legal action is pending or such directive or order is in effect.
§ 430-39 Certificates of occupancy; permits.
A.
New uses.
(1)
No building, structure or land shall be occupied or used until such time as a certificate of occupancy is issued by the Building Inspector. Such certificate shall be issued upon application by the owner, prospective occupant or purchaser only after the Building Inspector determines that the facts represented on the application are correct and that the building, structure or use is in conformance with the provisions of this chapter, the Building Code[1] and other codes and ordinances affecting construction and occupancy.
[Amended 9-21-2005 by Ord. No. 1304-2005]
(2)
A temporary certificate of occupancy may be issued for any structure or use for which site plan approval has been secured but not all conditions of approval have been complied with. The Planning Board shall approve the issuance of terms of any temporary certificate of occupancy.
B.
Existing uses.
(1)
Existing at time of passage of chapter. Upon written request from the owner, tenant, occupant or purchaser under contract, the Building Inspector, after inspection, shall issue an occupancy permit for a use legally existing at the time of passage of this chapter certifying the extent and kind of use and whether any such existing use conforms to the provisions of this chapter.
(2)
Nonconforming uses or structures. No change or extension of use and no alterations shall be made in a nonconforming structure, use or premises which requires a variance without an occupancy permit having first been issued by the Zoning Officer or his designee, stating that such change, extension or alteration is in conformity with the provisions of this chapter or that the same has been permitted by the action of the appropriate Board.
[Amended 9-21-2005 by Ord. No. 1304-2005]
C.
Change of use.
(1)
Whenever there occurs a change in the use of a building, structure or land, a new occupancy permit shall be applied for to ensure compliance with all applicable codes and ordinances.
(2)
For the purpose of this section, "change in use" shall be broadly construed and shall, for example, include substitution of one (1) type of retail trade use for another and of a particular industrial manufacturing use for another. A certificate of occupancy shall be obtained for each and every change of commercial or industrial occupancy. The Building Inspector may issue such certificate if he determines that the requirements of this chapter and of any other applicable federal, state, county or municipal rules, laws or regulations concerning the proposed occupancy do not differ from those of the previous occupancy.
D.
Scope certificate of occupancy. The certificate of occupancy shall contain sufficient information as to the extent and kind of use or uses such that any future investigation of the premises would disclose the extent to which a use is altered. It shall also indicate whether such use is a permitted or nonconforming use and the extent to which the use does not conform to the provisions of this chapter.
E.
Improvement requirement. No certificate of occupancy shall be issued for any use or building involving the installation of utilities or street improvements, parking areas, buffer areas, storm drainage facilities or the alteration of the existing grade on a lot unless the Municipal Engineer shall have certified, where applicable, that all utilities and drainage, grading of streets, sidewalks, curbing, parking areas, streets, buffer areas, grading of lots, public water supply, street signs, traffic control services, etc., affecting the proposed lot, building or use and required under the terms of site plan approval or tentative approval of a preliminary plat or by federal, state, county or municipal rules, regulations or laws shall have been installed.
§ 430-40 Records.
It shall be the duty of the Building Inspector to keep a record of all applications for building permits, a record of all permits issued and a record of all certificates of occupancy which he countersigns, together with a notation of all special conditions involved. He shall file and safely keep copies of all plans submitted, and the same shall form a part of the records of his office and shall be available for use by the officials of the municipality. The Building Inspector shall prepare a monthly report for the Municipal Council summarizing for the period since the last report all zoning permits and certificates countersigned by him and all complaints of violations and the action taken by him consequent thereon. A copy of such report shall be filed with the Municipal Tax Assessor at the same time it is filed with the Municipal Council.
§ 430-41 Application of regulations.
In all zones, for any proposed use, subdivision, site development or construction other than an exempt development, site plan and/or subdivision approval shall be required prior to:
A.
Subdivision of land.
B.
Issuance of a development permit or a building permit.
C.
Commencement of any regulated use or activity which includes:
(1)
The erection, construction, alteration, repair, remodeling, conversion, removal or destruction of any building or structures.
(2)
The subdivision or resubdivision of any land.
(3)
Any activity which entails the construction of any improvements or the alteration of the natural condition of any land.
(4)
Installation of aboveground or underground utilities.
§ 430-42 Conditioned approvals.
If approval is granted conditioned upon the subsequent approval of another government agency and such government agency requires revisions in the plat which alter the layout and/or design standards approved by the Planning Board or Board of Adjustment to an extent that the Board determines that the basis upon which the approval was granted has been changed, the applicant shall be required to receive revised approval from the Planning Board or Board of Adjustment and pay the fees for such revised approval set forth in Article VI.
§ 430-43 Board action.
In acting upon an application for development for a use variance, a subdivision or a site plan, the Planning Board and/or Board of Adjustment shall consider whether the submittal complies with the following standards and regulations:
A.
The proposed use is consistent with the Master Plan.
B.
The plat submission contains all of the information and data required by this chapter.
C.
Adequate provision has been made for the details and improvement standards of this chapter.
D.
Adequate provision has been made for safe and convenient vehicular traffic access, circulation and parking.
E.
Adequate provision has been made for safe and convenient pedestrian circulation.
F.
Ingress and egress for the site will not unduly impede or obstruct the flow of traffic on public streets.
G.
Adequate provision has been made for the collection and disposal of stormwater runoff, and the proposed drainage facilities have been approved by the Municipal Engineer.
H.
Adequate provision has been made to screen adjoining residential properties from any adverse effects that might result from outdoor lighting, buildings, parking areas, loading areas, refuse storage areas, recreation areas, equipment areas, bulk storage areas or similar utilities or structures located on the site.
I.
Adequate provision has been made for compliance with the performance standards of this chapter.
J.
Adequate provision has been made to provide structures and uses of a quality and design which will not produce adverse effects on existing developments in the surrounding area or future uses designated for the surrounding area in the Master Plan.
K.
The proposed development is compatible with adjacent and nearby parcels of land.
L.
The proposed development is compatible with environmental conditions and/or conditions of the site and nearby parcels of land.
§ 430-44 Informal review.
At the request of the developer, the approving board shall grant an informal review of a concept plan for a development, which the developer intends to prepare and submit as an application for development. The developer shall submit any fees required in Article VI for such an informal review. The developer shall not be bound by any concept plan for which review is requested, and the approving board shall not be bound by any such review. Such review shall be limited to planning concepts, and no written reaction to the review shall normally be provided by the board.
§ 430-45 Issuance of development permit.
Approvals of all applications for development shall not be valid until all the following have taken place:
A.
The Municipal Engineer shall certify that all conditions of approval have been satisfied.
B.
In the case of applications for development for site plans and subdivisions, the applicant shall submit a reproducible original of the plat for the signature of the Chairman and Secretary of the Planning Board or Board of Adjustment and Municipal Engineer as required herein.
C.
The applicant shall provide six (6) copies of the plat and attachments. After the signature, the administrative officer shall have the original and all copies signed and shall return the reproducible original of the plat and attachments to the applicant within ten (10) days of signature. One (1) copy shall be retained in the files of the administrative officer, two (2) copies shall be retained in the files of the Municipal Engineer, one (1) copy shall be retained in the files of the Construction Official and one (1) copy provided to the applicant.
D.
After signature and reproduction, the administrative officer shall return the reproducible original of the plat and attachments to the applicant within ten (10) days.
E.
For all applications for development that receive minor or final plat approval, the administrative officer shall issue a development permit within thirty (30) days after the plat has been signed. The date of the development permit shall be the date upon which the approval of applications for development related to preliminary plats becomes valid or shall be the date on which the plat is signed by the Chairman and Secretary of the Planning Board or Board of Adjustment. However, the period of time for which certain rights are conferred upon the applicant shall commence on the date which the Planning Board or Board of Adjustment granted the approval.
§ 430-46 Variance applications.
A.
Required documents. Prior to issuance of a certificate of completeness, the administrative officer shall determine that the following have been submitted in proper form. The administrative officer may schedule a variance for public hearing upon submission of the following items:
B.
Conditions of approval. Any approval of an application for development for a variance granted by the municipal agency shall be subject to the following conditions being satisfied prior to the issuance of a development permit:
(1)
Payment of any outstanding real estate taxes and property improvement assessments.
(2)
Publication of a notice of the decision by the Planning Board Secretary or Board of Adjustment Secretary within the time established.
(3)
Such other conditions which may be imposed by the municipal agency or which may be required by federal, state or local law.
(4)
A condition setting forth the time within which all conditions must be satisfied.
§ 430-47 Waivers.
Upon receipt by the administrative officer, the reviewing board or its designee may, upon specific written request of an applicant, consider and approve or deny requests for waiver of submission requirements set forth in this Article. All such requests by an applicant shall cite the specific requirement by section number and shall state the specific reason for the request for waiver. An application which meets all submission and detail requirements will be considered complete. If a request for waiver is denied, the applicant must provide the required submissions. Such detailed submissions will be reviewed as provided for new applications, and all time limits will recommence as for new applications.